EXHIBIT 10.21
FIFTH AMENDMENT TO CREDIT AGREEMENT
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This Amendment ("Amendment") is made as of the 30/th/ day of April, 1999,
by and between MATRIX SERVICE COMPANY, a Delaware corporation, MATRIX SERVICE,
INC., an Oklahoma corporation, MIDWEST INDUSTRIAL CONTRACTORS, INC., a Delaware
corporation, MATRIX SERVICE MID-CONTINENT, INC., an Oklahoma corporation, SAN
XXXX TANK & PIPING CONSTRUCTION CO., INC., a Delaware corporation, WEST COAST
INDUSTRIAL COATINGS, INC. a California corporation, MATRIX SERVICE, INC.
(CANADA), an Ontario corporation, hereinafter collectively referred to as the
"Borrowers" and individually as "Borrower" and Bank One, Oklahoma, NA formerly
names Liberty Bank and Trust Company of Oklahoma City, N.A., assignee of Liberty
Bank and Trust Company of Tulsa, N.A. (the "Bank").
WHEREAS, the Borrowers and the Bank entered into a Credit Agreement dated
August 30, 1994, as amended by that certain First Amendment to Credit Agreement
dated June 19, 1997 (the "First Amendment"), as amended by that certain Second
Amendment to Credit Agreement dated September 15, 1997, as further amended by
that certain Third Amendment to Credit Agreement dated as of March 1, 1998, and
as further amended by the Fourth Amended and Restated Credit Agreement dated as
of October 22, 1998 (hereinafter collectively referred to as the "Existing
Credit Agreement"), pursuant to which the Bank has established certain credit
facilities in favor of the Borrowers, as more particularly described therein;
and
WHEREAS, Midwest International, Inc., a Delaware corporation, merged into
Midwest Service Company, a Delaware corporation, which further merged into and
is no longer independent but remains a part of Matrix Service, Inc., an Oklahoma
corporation; and
WHEREAS, Maintenance Services, Inc., a Delaware corporation, has merged
into and is no longer independent but remains a part of Matrix Service Mid-
Continent, Inc., and Oklahoma corporation; and
WHEREAS, Colt Construction Company, a Delaware corporation, Mainserve-
Allentech, Inc., a Delaware corporation, Tank Supply, Inc., an Oklahoma
corporation, General Service Corporation, a Delaware corporation, Mayflower
Vapor Seal Corp., an Oklahoma corporation, Petrotank Equipment, Inc., an
Oklahoma corporation, have merged into and are no longer independent but remain
a part of Matrix Service, Inc., an Oklahoma corporation; and
WHEREAS, the parties hereto desire to amend the Existing Credit Agreement
as set forth below:
NOW, THEREFORE, the parties hereto agree as follows:
1. Capitalized terms not defined herein shall have the meaning ascribed
in the Existing Credit Agreement.
2. (a) Section 7.2/ The Section bearing the heading Sale of Assets of the
Existing Credit Agreement is hereby amended and restated to read as follows:
None of the Borrowers will sell, transfer, convey or otherwise dispose of,
whether pursuant to a single transaction or a series of
transaction: (i) the Collateral, or any portion thereof; or (ii) more than five
percent (5%) in value of its other Properties. Notwithstanding the foregoing:
(i) the Borrowers may sell their Inventory and collect their Accounts in the
ordinary course of business; (ii) the Borrowers may sell Properties not included
in the Collateral if (A) such Properties are no longer used or useful in their
respective business, (B) any such sale, transfer or other disposition is for a
price not less than the fair market value of any such Properties and is made
pursuant to commercially reasonable terms and condition, and (C) such sales,
transfers and dispositions do not create a Default or Event of Default under any
other provision of this Agreement; and (iii) the Borrowers may sell the stock
and other assets of Xxxxx Steel Contractors, Inc. and subsidiaries.
(b) Section 7.9/ The Section bearing the heading Dividends and
Distributions of the Existing Credit Agreement is hereby amended and restated to
read as follows: None of the Borrowers will: (i) declare, make or pay any
dividends on shares of any class of its capital stock, or set apart any sum of
money or any assets for the payment of dividends, or make any other
distribution, by reduction of capital or otherwise, in respect of any class of
its capital stock; (ii) purchase, redeem, retire, or otherwise acquire, either
directly or indirectly, any shares of any class of its capital stock, or set
apart any sum of money or any of its assets therefor, or (iii) make any other
type of payment or distribution of cash, property or assets to or among any of
its shareholders (in their capacities as shareholder) with the exception of the
distribution of the assets of Xxxxx Steel Contractors and its subsidiaries to
the Affiliates or borrowers. Notwithstanding the foregoing, any of the
Borrowers may purchase or redeem shares of its capital stock in each fiscal
year, provided that (A) no Default or Event of Default has occurred and is
continuing as of the date any such purchase or redemption is to be made, and (B)
the making of such purchase or redemption would not create or give rise to a
Default or Event of Default under any other provision of this Agreement
(including, without limitation, the financial covenants set forth in Subsection
7.11 hereof).
(c) Section 7.11.1/ The Section bearing the heading Tangible Net Worth
of the Existing Credit Agreement is hereby amended and restated to read as
follows: The Borrowers will not permit their consolidated tangible net worth
(determined in accordance with GAAP) to be less than an amount equal to the sum
of $42,500,000.00 plus (beginning with the fiscal year ending May 31, 2000)
fifty percent (50%) of the Borrowers' cumulative net income after tax, exclusive
of the Borrowers' losses and/or one hundred percent (100%) of the proceeds of
any public offering of the stock of any of the Borrowers.
3. The Borrowers represent and warrant that (a) the representations and
warranties contained in the Existing Credit Agreement are true and correct in
all material respects as of the date of this Amendment, except to the extent
necessary to reflect the mergers as defined in the preamble. (b) no condition,
act or event which would constitute and Event of Default under the Existing
Credit Agreement exists, and (c) no condition, event, act or omission has
occurred, which, with the giving of notice or passage of time, would constitute
and Event of Default under the Existing Credit Agreement.
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4. The Borrowers agree to pay all fees and out-of-pocket disbursements
incurred by the Bank in connection with this Amendment, including legal fees
incurred by the Bank in the preparation, consummation, administration and
enforcement of this Amendment.
5. This Amendment shall become effective only after it is fully executed
by the Borrowers and the Bank. Except as amended by this Amendment, the
Existing Credit Agreement shall remain in full force and effect in accordance
with its terms.
6. This Amendment is a modification only and not a novation. Except for
the above-quoted modification(s), the Existing Credit Agreement, any agreement
or security document, and all the terms and conditions thereof, shall be and
remain in full force and effect with the changes herein deemed to be
incorporated therein. This Amendment is to be considered attached to the
Existing Credit Agreement and made a part thereof. This Amendment shall not
release or affect the liability of any guarantor, surety or endorser of the
Existing Credit Agreement or release any owner of collateral securing the
Existing Credit Agreement with the exception of the release of Xxxxx Steel
Contractors, Inc. and its subsidiaries from their liabilities under the Existing
Credit Agreement, the Revolving Credit Facility and the Term Loan Facility. The
validity, priority, and enforceability of the Existing Credit Agreement shall
not be impaired hereby. To the extent that any provision of this Amendment
conflicts with any term or condition set forth in the Existing Credit Agreement,
or any agreement or security document executed in conjunction therewith, the
provisions of this Amendment shall supersede and control. Borrowers acknowledge
that as of the date of this Amendment it has no offsets with respect to all
amounts owed by Borrowers to Bank and Borrowers waive and release all claims
which it may have against Bank arising under the Existing Credit Agreement on or
prior to the date of this Amendment.
7. The Borrowers acknowledge and agree that this Amendment is limited to
the terms outlined above, and shall not be construed as an amendment of any
other terms or provisions of the Existing Credit Agreement; The Borrowers hereby
specifically ratify and affirm the terms and provisions of the Existing Credit
Agreement. Borrowers release Bank from any and all claims which may have
arisen, known or unknown, in connection with the Existing Credit Agreement on or
prior to the date hereof. This Amendment shall not establish a course of
dealing or be construed as evidence of any willingness on the Bank's part to
grant other or future amendments, should any be requested.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
day and year first above written.
BORROWERS:
MATRIX SERVICE COMPANY
By:
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Title:
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MATRIX SERVICE, INC.
By:
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Title:
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MIDWEST INDUSTRIAL CONTRACTORS, INC.
By:
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Title:
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MATRIX SERVICE MID-CONTINENT, INC.
By:
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Title:
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SAN XXXX TANK PIPING CONSTRUCTION CO., INC.
By:
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Title:
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WEST COAST INDUSTRIAL COATINGS, INC.
By:
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Title:
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MATRIX SERVICE, INC. (CANADA)
By:
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Title:
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BANK ONE, OKLAHOMA, NA
By:
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Title:
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